Diaz-Martinez v. Miami-Dade County et al

Filing 239

OMNIBUS ORDER ADOPTING IN PART REPORT AND RECOMMENDATION (D.E. 225); GRANTING IN PART AND DENYING IN PART DEFENDANT DANIELS'S SECOND MOTION TO DISMISS (D.E. 200), DEFENDANT SHIPES'S MOTION TO DISMISS (D.E. 197), DEFENDANT PATMORE'S MOT ION TO DISMISS (D.E. 196), DEFENDANT CROCKER'S MOTION TO DISMISS (D.E. 195), DEFENDANT CALVERT'S MOTION TO DISMISS (D.E. 199), DEFENDANT KELLER'S MOTION TO DISMISS (D.E. 198); GRANTING DEFENDANT MIAMI-DADE COUNTY'S MOTION TO DISMISS (D.E. 193) AND DEFENDANT HELLER'S MOTION TO DISMISS (D.E. 194). Signed by Judge Joan A. Lenard on 9/10/2009. (bby)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 07-20914-CIV-LENARD/GARBER L U I S DIAZ-MARTINEZ, P l a in tif f , vs. M I A M I - D A D E COUNTY, a Florida M u n icip al C o rp oration ; E sta te o f F E R N A N D O W. MENDEZ, individually; J O S E P H T. DANIELS, individually; N O R M A N SHIPES, individually; JESSE P A T M O R E , individually; J.J. CROCKER, i n d i v i d u a l l y ; RICHARD CALVERT, individually; R O B E R T K E LL ER , individually; IRVING HELLER, in d iv id u a lly ; and JOHN and JANE DOES 1 th r o u g h 10, police and supervisory officers o f the Miami-Dade County police, in their in d iv id u a l capacities as officers and in their o ffic ia l capacities as policymakers for M ia m i-D a d e County, D e f e n d a n ts . _ _ _ _ _____ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ / O M N I B U S ORDER ADOPTING IN PART REPORT AND RECOMMENDATION (D .E . 225); GRANTING IN PART AND DENYING IN PART DEFENDANT D A N IE L S 'S SECOND MOTION TO DISMISS (D.E. 200), DEFENDANT S H IP E S 'S MOTION TO DISMISS (D.E. 197), DEFENDANT PATMORE'S M O T I O N TO DISMISS (D.E. 196), DEFENDANT CROCKER'S MOTION TO D I S M I S S (D.E. 195), DEFENDANT CALVERT'S MOTION TO DISMISS (D.E. 1 9 9 ), DEFENDANT KELLER'S MOTION TO DISMISS (D.E. 198); GRANTING D E F E N D A N T MIAMI-DADE COUNTY'S MOTION TO DISMISS (D.E. 193) AND D E F E N D A N T HELLER'S MOTION TO DISMISS (D.E. 194) THIS CAUSE is before the Court on the Report and Recommendation of Magistrate

Ju d g e William C. Turnoff ("Report," D.E. 225), issued on June 9, 2009. In his Report, M ag istrate Judge Turnoff recommends that the Court grant in part and deny in part D e f en d a n t Daniels's Second Motion to Dismiss (D.E. 200) filed on March 24, 2008, and the M o tio n s to Dismiss of Defendants Shipes (D.E. 197), Patmore (D.E. 196), Crocker (D.E. 1 9 5 ), Calvert (D.E. 199), and Keller (D.E. 198), all filed on September 6, 2007. He further re c o m m e n d s that the Court grant the Motions to Dismiss of Defendants Heller1 (D.E. 194) a n d Miami-Dade County (the "County") (D.E. 193), also filed on September 6, 2007.2 H a v in g reviewed the Report, the Motions, the related papers, and the record, the Court finds a s follows.

Throughout this Order, Defendants Daniels, Shipes, Patmore, Crocker, Calvert, Keller, and Heller will collectively be referred to as the "police defendants." A status conference was held before Magistrate Judge Turnoff on April 16, 2009. At that time, the parties advised that Magistrate Judge Barry L. Garber had recently granted a Motion for Leave to File a Third Amended Complaint. (See D.E. 189). Same was filed on January 22, 2009. (D.E. 191). Accordingly, Magistrate Judge Turnoff entered a Procedural Order deeming moot the motions to dismiss which were directed at the Second Amended Complaint. (See D.E. 216.) As noted in that Procedural Order, in response to the Third Amended Complaint, Defendants Miami-Dade County, Heller, Crocker, Patmore, Snipes, Keller, Calvert, and Daniels have filed notices adopting their prior motions to dismiss and supporting memoranda. (See D.E. 193, 194, 195, 196, 197, 198, 199, 200.) Plaintiffs have done the same as to their memoranda in opposition. (See D.E. 202, 203, 204, 205, 206, 207, 208, 209.) Upon review of the Third Amended Complaint, Magistrate Judge Turnoff found that the only changes to the various motions was the naming of the Personal Representative of the Estate of Fernando W. Mendez, and the correction of certain scrivener's errors. (D.E. 178.) In other words, Magistrate Judge Turnoff found no substantive changes. As such, the Court takes notice of the adoption of the prior motions and memoranda and will treat them as pending motions related to the Third Amended Complaint. 2
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I.

P r o c e d u r a l History and Factual Background

T h e following factual background of the instant matter comes from the Report and is re p e ate d below for the sake of clarity and completeness. The Report took the factual allegatio n s from the Third Amended Complaint, which, on a Rule 12(b)(6) motion to dismiss, the Court must accept as true. See Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2 0 0 7 ). A. P la in t iff's wrongful conviction and exoneration

O n May 9, 1980, Plaintiff was convicted in the Circuit Court of Florida, for the C o u n ty of Dade, for the crimes of kidnapping, sexual battery, involuntary sexual battery, ro b b e ry, unlawful possession of firearm while engaged in a criminal offense, aggravated assa u lt, and burglary of structure. (D.E. 191, Third Amended Complaint ("TAC") ¶ 70.) Plaintiff was sentenced to three consecutive life sentences and a number of additional c o n c u rre n t sentences. (TAC ¶ 71.) Roughly twenty-two years later, based on the recanted te stim o n y of two victims, L.C. and D.C.3 , the State of Florida moved the Circuit Court of the E leve n th Judicial Circuit in and for Miami-Dade County, Florida, to vacate Plaintiff's c o n v ic tio n s in two of the cases brought against him. (TAC ¶ 72.) On March 7, 2002, P la in tif f 's convictions in the two cases were vacated by the Circuit Court. (TAC ¶ 73.) On A u g u s t 3, 2005, on the basis of DNA evidence, Plaintiff was exonerated from all the other c rim e s for which he had been convicted, and the Circuit Court vacated the remainder of his
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For privacy reasons, the victims are referred to by their initials throughout the pleadings and in this Order.

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c o n v i c t i o n s . (TAC ¶ 74-75.) Plaintiff had been held continuously in custody for nearly tw e n ty-six years. (TAC ¶ 76.) P la in tif f 's vacated convictions stemmed from his alleged involvement in a series of tw e n ty-f iv e rapes and assaults which occurred around Bird Road in Miami-Dade County, F lorid a in the late 1970s. (TAC ¶ 21.) The attacks were all conducted in a similar manner: th e assailant would drive up behind a lone woman riding in her car late at night, flash his lig h ts at her, and then display a gun and order the female driver to get into his car; the women w h o entered the assailant's car were sexually assaulted; and the assailant often took the v ic tim 's driver's license or other souvenirs. (Id.) The similar nature of the attacks led the M ia m i-D a d e Police Department ("MDPD") - then known as the Metro-Dade Police D e p a r tm e n t - and the press to believe that one person was responsible for all of the attacks. (Id .) In the summer of 1979, this assailant came to be popularly referred to as the "Bird Road R a p is t." (Id.) The MDPD attempted a series of stakeouts in the Bird Road area during the s u m m e r of 1979 but did not uncover any productive leads. (TAC ¶ 23.) B. T h e MDPD investigation of Plaintiff

P la in tif f was suspected of involvement in the attacks prior to the summer of 1979. O n July 19, 1977, C.J. was raped in the Bird Road area. (TAC ¶ 24.) Immediately after she w a s assaulted, C.J. described her assailant to the police as a white Cuban male, 6'2" and 2002 2 0 lbs, with dark graying hair, brown eyes, a mustache, and acne scars. (TAC ¶ 25.) C.J. told the MDPD that her assailant spoke fluent English with a Spanish accent and drove a dark

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g ree n two-door fastback, with a black vinyl top and a dark interior, possibly a `69-`70 Ford F a irla n e . (Id.) Four days after she was attacked, C.J. saw Plaintiff drive into a gas station w h e re she worked and was convinced that he was her assailant. (TAC ¶ 26.) She wrote d o w n his license plate number and reported it to the police. (Id.) At that time, Plaintiff was 5'4" and 140 lbs, with black hair with no gray in it, clean s h a v e n , and without acne scars. (TAC ¶ 27.) He drove a green four-door 1968 Chevrolet

Im p a la . (Id.) He worked as a short-order cook at Lila's Restaurant and had no prior criminal re c o rd . (TAC ¶ 28.) The MDPD investigated Plaintiff following their receipt of C.J.'s tip. T h e MDPD determined that Plaintiff could not speak English and a polygraph test of C.J. re v e a le d that she was uncertain of her identification of Plaintiff as her assailant. (TAC ¶ 29.) B e c au s e Plaintiff did not match C.J.'s description and because C.J. was uncertain of her id e n tif ic a tio n , the MDPD decided not to pursue any further investigation of Plaintiff. (Id.) O v e r two years later, on August 20, 1979, during the growing public discontent over th e at-large Bird Road Rapist, Defendant Calvert, an MDPD Lieutenant, received a letter f ro m C.J. asking why the MDPD had not prosecuted Plaintiff, the man she had identified as h er assailant in July of 1977. (TAC ¶ 24.) Based on C.J.'s letter, Defendant Calvert

in s tru c te d MDPD officers to reopen their investigation of Plaintiff. (TAC ¶ 30.) Defendant K e lle r, an MDPD sergeant, directed and oversaw the investigation. C. D efe n d a n ts' investigation of Plaintiff 1. T h e photo identification

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O n August 24, 1979, Defendant Calvert and Defendant Daniels and either Defendant S h i p e s or Defendant Crocker4 showed a photo array to L.C. (TAC ¶ 33.) L.C. had been

rap ed in the Bird Road area on June 24, 1979. (Id.) The photo array consisted of a driver's lic e n s e photo of Plaintiff, but mug shots of the other members of the photo array. (Id.) W h e n first showed the array, L.C. said that none of the men looked like her assailant and a sk e d to see more pictures. (Id.) The defendant officers instructed L.C. to look closer at the p h o to array. (Id.) L.C. said that all of the people in the photo array besides Plaintiff had lar g e frames, while her assailant had a small frame, and she wanted to see more people with sm all frames. (Id.) The defendant officers instructed her for a second time to look more c lo s e ly at the photo array that contained Plaintiff's driver's license photo. (Id.) After being in s tru c te d twice by the defendant officers to look more closely at the photo array containing P la in tif f 's photo, L.C. still did not identify Plaintiff as her rapist. (TAC ¶ 34.) Instead, L.C. sa id that she could not definitively identify Plaintiff as her assailant but would like to see him in person. (Id.) The defendant officers told L.C. that she needed to sign the back of P la in tif f 's photo in order for them to pick him up and bring him to her in person. L.C. f o llo w e d the defendant officers' instructions but never identified Plaintiff. (Id.) After she s ig n e d the back of the photograph, the defendant officers indicated to L.C. that she had p icke d out her assailant and that another victim had already identified Plaintiff. (Id.) The defendant officers never told the prosecution or defense how they had conducted

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Defendants Daniels, Shipes, and Crocker were MDPD detectives at the time. 6

th e display of the photo array to L.C. (TAC ¶ 35.)

Instead, the defendant officers falsely

re p o rte d that L.C. had made a positive identification of Plaintiff from the photo array. (Id.) 2. F a b r ic a te d evidence

On August 27, 1979, Defendants Shipes and Daniels went to Lila's Restaurant, where P la in tif f worked, to ask him to come to the MDPD station to give fingerprints and have a p h o to g ra p h taken. (TAC ¶ 37.) Defendants Shipes and Daniels communicated with Plaintiff th ro u g h his co-workers who then translated into Spanish. (Id.) O n August 27, 1979, Plaintiff voluntarily went to the MDPD station where he gave f in g e rp rin ts and had his photograph taken. (TAC ¶ 38.) The next day, he returned to the M D P D station to be interviewed. (TAC ¶ 39.) He was interviewed by Defendants Shipes a n d Daniels through a Spanish interpreter and his attorney was present throughout the in te rv ie w . (Id.) After this interaction, Defendants Shipes and Daniels fabricated evidence th a t Plaintiff had spoken English to them at Lila's Restaurant and during his interview. (T A C ¶ 40.) They also fabricated evidence that Plaintiff's civil attorney had told them that P la in tif f spoke good English and that he had been present during the interview when Plaintiff s p o k e English. (TAC ¶ 41.) On August 29, 1979, Defendants Shipes and Daniels swore out a felony complaint including this deliberately fabricated evidence. (TAC ¶ 42.) On August 28, 1979, at the direction of Defendant Keller, Defendants Mendez and P a tm o r e , detectives with the MDPD, went to Plaintiff's old apartment building to canvass h is former neighbors. (TAC ¶ 44.) Most of the occupants of the apartment building spoke

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S p an ish. (TAC ¶ 45.) Defendant Mendez was fluent in Spanish while Defendant Patmore d id not speak Spanish. (Id.) The same day of the canvass, Defendants Mendez and Patmore t o ld Defendant Keller and the other investigating officers that three of Plaintiff's former n e ig h b o rs had told them the following information: Plaintiff spoke English; Plaintiff had a m u s ta c h e in 1977 or 1978; Plaintiff had access to many different cars through his brother-inla w , a used car salesman; Plaintiff often stayed out late at night after work drinking, and o f ten had strange visitors late at night who drove expensive cars; Plaintiff was involved with d ru g s or associated himself with drug dealers; and the neighbors feared Plaintiff. (TAC ¶ 4 6 .) Each of these pieces of information was a deliberate fabrication as none of Plaintiff's n e ig h b o rs told Defendants Mendez and Patmore any of this information and the information w as entirely false. (TAC ¶ 47.) Defendant Mendez later created a written report

m e m o r ia liz in g the fabricated evidence that he claimed he had received from his canvass of P la in tif f 's old apartment building. (TAC ¶ 48.) The prosecutor authorized the arrest of Plaintiff after receiving the evidence f a b ric a te d by Defendants Shipes, Daniels, Mendez and Patmore and the faulty identification o f Plaintiff by L.C. (TAC ¶ 49.) MDPD officers including Defendants Keller, Shipes, D a n ie ls , and Mendez arrested Plaintiff in the early morning of August 29, 1979. (TAC ¶ 50.) T h e r e was absolutely no physical evidence linking Plaintiff to any of the rapes or assaults, d e sp ite exhaustive searches by the MDPD. (TAC ¶ 54.) There was also no evidence that P la in tif f ever had a gun or access to multiple cars. (Id.)

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A t the time, Plaintiff spoke little or no English and this was known to the police d e f e n d a n ts. (TAC ¶ 51.) Defendant Mendez later falsely reported, both orally and in w riting , that, following Plaintiff's arrest, he had an extensive conversation with Plaintiff in E n g lis h in which Plaintiff understood all questions asked in English and responded a p p ro p ria tely in English. (TAC ¶ 52.) Defendant Keller later falsely testified at his

d e p o s itio n that he overheard Plaintiff speaking broken English during this interview with M e n d e z. (TAC ¶ 52.) Defendant Keller also signed off on Defendant Mendez's report of h is conversation with Plaintiff and verified it as accurate. (Id.) 3. T h e press conference

The same day that Plaintiff was arrested, the MDPD held a press conference a n n o u n c in g the arrest. (TAC ¶ 55.) Defendant Heller, the head of the Robbery and Sexual B a tte ry Section of the MDPD, spoke at the press conference, as did Defendant Calvert (Id.) A t the time of the arrest, MDPD officers, including Defendants Heller and Calvert, knew that a lm o st every victim of the Bird Road Rapist had never identified Plaintiff as their assailant. (Id .) They also knew that the MDPD planned on holding a lineup on August 31, 1979 to give th e numerous suspected victims of the Bird Road Rapist an opportunity to identify Plaintiff. (Id .) Further, they knew that they were not supposed to release any photographs of Plaintiff in advance of the lineup to avoid tainting the lineup. (Id.) A t the press conference, which was televised, Defendant Heller announced Plaintiff's a rre st and stated that, "without hesitation," Plaintiff was involved with at least two of the

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ra p e s. (TAC ¶ 56.) Defendant Heller also gave a physical description of Plaintiff, providing h is height, approximate build, and age, knowing that such information could improperly taint th e lineup. (TAC ¶ 57.) Additionally, he provided Plaintiff's full name and his home and w o rk address. (Id.) He also falsely indicated that two independent leads had led the police to Plaintiff and that, although Plaintiff denied speaking English, he would break into English d u rin g heated exchanges. (Id.) When Defendant Calvert spoke, he falsely stated that he had " lo n g ago" compiled a profile of the Bird Road rapist and that Plaintiff perfectly matched the p ro f ile . (TAC ¶ 58.) The press conference was covered by the local newspapers and te le v is io n news. (Id.) 4. The lineup

O n August 31, 1979, MDPD officers - including Defendants Shipes, Daniels, Mendez, a n d Calvert - held a physical lineup containing six people for 22 victims of the Bird Road R ap is t. (TAC ¶ 59.) Plaintiff was the only person in the lineup whose photo had been shown to any of the victims prior to the physical lineup. (TAC ¶ 60.) He was also the oldest person in the physical lineup by seven years. (Id.) M a n y of the victims were prompted to select someone from the lineup when they in itia lly could not make an identification. (TAC ¶ 62.) Many of the victims expressed u n c e rta in ty regarding their selections. (Id.) Only five of the 22 victims identified Plaintiff a s their assailant. (Id.) C.J. identified Plaintiff as her assailant. (Id.) But L.C., whose i m p ro p e r photo identification of Plaintiff led to his arrest, did not identify Plaintiff as her

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a s s a ila n t. (Id.) A number of the victims picked out other members of the lineup. (Id.) S e v e n victims did not identify anyone in the lineup as their assailant. (Id.) V ic tim s who identified Plaintiff as their assailant immediately received positive re in f o rc e m e n t from the police defendants that they had picked the correct person. (TAC ¶ 6 3 .) The police did not take statements from victims who picked a person other than Plaintiff o u t of the lineup or picked no one; the police conducted no further investigation of their c a se s. (TAC ¶ 64.) One such woman was told by police that she "misidentified the d e f en d a n t." (Id.) Two of the victims who did not identify Plaintiff at the line-up, C.L. and L .C ., were privately and repeatedly shown a videotape of the lineup by MDPD officers, inclu d ing Defendant Keller, until they identified Plaintiff as their assailant.5 (TAC ¶ 65.) D. P la in t iff's prosecution

P la in tif f was prosecuted in eight of the "Bird Road Rapist" cases: these included the f o u r women who identified Plaintiff at the live lineup, one woman who tentatively identified h im at the live lineup, the two women who had been induced to identify Plaintiff at the v id e o ta p e d playback of the lineup, and one woman who had never reported the alleged a ss a u lt against her until she saw Plaintiff's photograph on television during a report on the B ird Road Rapist. (TAC ¶ 68.) T h e prosecution's case against Plaintiff rested on two pieces of evidence: the

All of the allegations regarding the August 31, 1979 lineup appear to be directed towards Defendants Shipes, Daniels, Mendez, and Calvert, besides the private videotape viewing of the lineup which appears to be directed solely towards Defendant Keller.

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id e n tif ic a tio n of him by the eight victims and the evidence fabricated by various police d e f en d a n ts that Plaintiff spoke English. (TAC ¶ 69.) There was no physical evidence linking h im to the crime, no evidence that he had access to a gun, and no evidence explaining how h e would have gotten access to the cars used by the Bird Road Rapist. (Id.) Additionally, fo u rtee n of the victims never identified Plaintiff as their assailant despite the police theory that one person committed all of the attacks. (Id.) E. P la in t iff's civil action

P l a in tif f instituted the instant action on April 4, 2007. (See D.E. 1.) In his Third A m en d ed Complaint, Plaintiff asserts eleven claims. (See D.E. 191.) Seven of his claims are a g a in s t the police defendants: a 42 U.S.C. § 1983 claim for unduly suggestive identification p ro c e d u re s (Count I); a 42 U.S.C. § 1983 claim for false imprisonment and malicious p ro s e c u tio n in violation of the Fourth Amendment (Count II); a 42 U.S.C. § 1983 claim for f a b ric a tio n of evidence in violation of the Fourteenth Amendment (Count III); a 42 U.S.C. § 1983 claim for deliberate suppression of materially favorable evidence and deliberate f a ilu re to conduct an adequate investigation in violation of the Fourteenth Amendment (C o u n t IV); a 42 U.S.C. § 1983 claim for conspiracy to deprive Plaintiff of his civil rights ( C o u n t V); and two state law claims for malicious prosecution (Count X) and inten tio n al/rec k less infliction of emotional distress (Count XI.) Three of his claims are a g a in s t the County: a 42 U.S.C. § 1983 claim for unconstitutional municipal policy, custom o r practice (Count VII); a 42 U.S.C. § 1983 claim for failure to train and/or supervise police

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o f f ic e r (Count VIII); and a state law claim for negligent training and supervision (Count IX.) H e also asserts a 42 U.S.C. § 1983 claim against Defendants Calvert, Keller, and Heller for su p erv isor liability (Count VI.) II. T h e Report

In his lengthy and detailed Report, Magistrate Judge Turnoff reviewed Plaintiff's c la im s as they pertained to each of the Defendants. As to Count I, Plaintiff's claim regarding unconstitutionally suggestive identification p ro c e d u re s, Magistrate Judge Turnoff found that Plaintiff had adequately stated a claim for v io la tio n of his Fourteenth Amendment right to a fair trial and due process. Then, addressing th e police defendants' claims to qualified immunity from Count I, Magistrate Judge Turnoff f o u n d that qualified immunity did not attach to Defendants Calvert and Daniels and Shipes o r Crocker for their conduct in connection with the photo array shown to L.C., nor did it a tta c h to Defendants Calvert, Shipes, and Daniels for their conduct in connection with the p h ysic a l lineup. However, Magistrate Judge Turnoff found that qualified immunity did s h ie ld Defendants Heller and Calvert from liability for their conduct regarding the press c o n f e re n c e and recommended that Count I be dismissed against them. Further, Magistrate J u d g e Turnoff found that Plaintiff failed to state a claim as to Defendant Patmore in Count I . Magistrate Judge Turnoff also rejected the police defendants' argument that Counts I th ro u g h IV were redundant. As to Count II, Plaintiff's claim for malicious prosecution, Magistrate Judge Turnoff

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f o u n d that, based on Plaintiff's allegations regarding fabrication of evidence by Defendants P a tm o re , Shipes, Danies, and Keller, and Defendants Calvert, Daniels, Shipes, Crocker, and K e lle r's alleged conduct in connection with the photo and physical lineups, Plaintiff had a d e q u a t e ly stated a claim in Count II, and that qualified immunity did not shield these d e f e n d a n ts from liability. However, consistent with his findings as to Count I, Magistrate Ju d g e Turnoff found that qualified immunity attached to Defendant Heller with regards to C o u n t II and recommended that the claim against him be dismissed. As to Count III, Plaintiff's claim regarding fabrication of evidence, Magistrate Judge T u rn o f f found that Plaintiff had adequately pled his claim against Defendants Patmore, S h ip e s, Daniels, and Keller, but had failed to make any allegations regarding fabrication of e v id e n c e by the other police defendants and as such recommended that Count III be d i sm is s e d against these defendants. A s to Count IV, Plaintiff's claim for deliberate failure to disclose material exculpatory a n d impeachment evidence and deliberate failure to conduct an adequate investigation, M a g istra te Judge Turnoff found that Plaintiff had adequately pled claims against Defendants C a lv e rt and Daniels and Shipes or Crocker based on their failure to disclose to the prosecutor th e suggestive means used to induce L.C.'s identification, and against Defendant Shipes, D a n ie s, Patmore, and Keller for their failure to disclose that they fabricated evidence. But M a g is tra te Judge Turnoff found that Plaintiff had failed to adequately plead a claim in Count IV against Defendant Heller and recommended that it be dismissed against him.

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A s to Count V, Plaintiff's claim for § 1983 conspiracy by the police defendants, M a g is tra te Judge Turnoff found that Plaintiff had failed to satisfy the heightened pleading s t a n d a rd for such claims, as he failed to allege specific facts regarding the nature of the c o n s p i r a c y. d e f e n d a n t s. A s to Count VI, Plaintiff's claim for § 1983 supervisor liability against Defendants C a lv e rt, Keller, and Heller, Magistrate Judge Turnoff recommended that the claim proceed a g a i n s t Defendant Calvert for his personal participation in the photo lineup and against D e f en d a n t Keller for his personal participation in the physical lineup and the fabrication of D ef en d an t Mendez's report, but not against Defendant Heller. A s to Count VII, Plaintiff's claim against the County for unconstitutional municipal p o lic y, custom, or practice in violation of § 1983, Magistrate Judge Turnoff recommended th a t the claim be dismissed without prejudice, as Plaintiff incorrectly alleged that final p o li c ym a k in g authority for the County rested in the Police Chief and Mayor, and failed to a lle g e that the Board of County Commissioners or the County Manager - with whom final p o lic ym a k in g authority actually rested - adopted an unconstitutional policy, custom, or p r a c ti c e . A s to Count VIII, Plaintiff's claim against the County for failure to train/supervise its p o lice officers in violation of § 1983, Magistrate Judge Turnoff recommended that the claim b e dismissed. He found that Plaintiff had failed to establish an officially promulgated County Accordingly, he recommended that the claim be dismissed as to all the

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p o lic y or an unofficial custom or practice of the County shown through repeated acts of a fin al policymaker. A s to Count IX, Plaintiff's state law claim against the County for negligent training a n d supervision of its police officers, Magistrate Judge Turnoff found that the training and su p erv isio n of police officers was an "operational" function of government and therefore P l a i n t if f 's claim was barred by sovereign immunity. Further, to the extent that Plaintiff a lle g e d negligent training in his Third Amended Complaint, he failed to allege a single fact s u p p o rtin g such a claim. As such, he recommended that the claim be dismissed. A s to Count X, Plaintiff's claim against the police defendants for state law malicious p ro se c u tio n , Magistrate Judge Turnoff found that the claim could proceed against Defendants P atm o re, Shipes, Daniels, Crocker, Calvert and Keller for the same reasons that Plaintiff's § 1983 malicious prosecution claim could proceed, but recommended that the claim be d is m is s e d against Defendant Heller for reason of qualified immunity. A s to Count XI, Plaintiff's claim against the police defendants for intentional in f lictio n of emotional distress, Magistrate Judge Turnoff found that Plaintiff had adequately a lleg e d outrageous conduct against Defendants Shipes, Daniels, Patmore, and Keller to s u s ta in a claim for intentional infliction of emotional distress based on their fabrication of e v id e n c e. However, Magistrate Judge Turnoff recommended that the claim be dismissed a g a in s t Defendants Crocker, Calvert, and Heller, as their alleged conduct did not rise to the n e c e s s a ry level of outrageousness.

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III.

O b je c tio n s

B e tw e e n Plaintiff and Defendants, the parties object to nearly every recommendation o f the Report. P la in tif f objects to the following from the Report: (1) the recommendation that Count V , Plaintiff's claim for § 1983 conspiracy by the police defendants, be dismissed; (2) the r e co m m e n d a tio n that Plaintiff's claims in Counts I, II, III, IV, and VI against Defendant H e l le r be dismissed on grounds of qualified immunity; (3) the recommendation that P la in tif f 's claims in Count VII and VIII, Plaintiff's § 1983 claims against the County for u n c o n stitu tio n a l municipal policy, custom, or practice, and failure to train/supervise, be d is m is s e d without prejudice; (4) the recommendation that Plaintiff's claim in Count IX, P l a in t if f ' s state law claim against the County for negligent training and supervision of its p o lice officers, be dismissed without prejudice; (5) the recommendation that Plaintiff's claim in Count X for state law malicious prosecution against Defendant Heller be dismissed; and (6 ) the recommendation that Plaintiff's claims in Count XI for intentional infliction of e m o tio n a l distress against Defendants Crocker, Calvert, and Heller be dismissed. Defendants - collectively, individually, and in groups - make the following objections: ( 1 ) Defendants Keller and Calvert object to the recommendation that their motions to dismiss C o u n t VI, Plaintiff's claim for § 1983 supervisor liability, be denied; (2) Defendants Crocker, P a tm o re , Shipes, Keller, Calvert, and Daniels object to the Report's finding that they are not en title d to qualified immunity based on the fellow officer rule; (3) Defendants Crocker,

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P atm o re, Shipes, Keller, Calvert, and Daniels object to the Report because it does not adhere to the rule established by the Supreme Court in Devenpeck v. Alford, 543 U.S. 146, 153 (2 0 0 4 ), that qualified immunity should apply as long as there is any basis to seize and detain a criminal defendant; (4) Defendants Calvert, Daniels, Shipes, and Crocker object to the R e p o rt's recommendation that their motion to dismiss Count I, Plaintiff's claim regarding u n co n stitutio n ally suggestive identification procedures, be denied; (5) Defendants Crocker, P a tm o re , Shipes, Keller, Calvert, and Daniels object to Report's rejection of their argument that Counts I, III, and IV are redundant and should be dismissed; (6) Defendants Crocker, P a tm o re , Shipes, Keller, Calvert, and Daniels object to the recommendation that their motion to dismiss Counts X and XI, Plaintiff's state law claims for malicious prosecution and in te n tio n a l infliction of emotional distress, be denied; (7) Defendant Daniels objects to the re c o m m e n d a tio n that the claims against him proceed even though he was not timely or p ro p e rly served with process under Rules 4(m), 12(b)(2), 12(b)(4), and 12(b)(5); and (8) D e f e n d a n ts object to the statement at the end of the Report that "[f]ailure to file timely o b je c tio n s shall bar the parties from attacking on appeal the factual findings contained h e r e in ," to the extent that the statement means that the Report made any factual findings. IV . D is c u s s io n

T h e Court will address Plaintiff's and Defendants' objections in turn. A. P la in tiff's Objections 1. C o u n t V of the Third Amended Complaint does not satisfy t h e heightened pleading standard for conspiracy claims. 18

T o satisfy the heightened pleading standard for conspiracy claims, "`[t]he plaintiff d o e s not have to produce a smoking gun to establish the understanding or willful p a rtic ip a tio n required to show a conspiracy, but must show some evidence of agreement b e tw e e n the defendants.'" Albra v. City of Fort Lauderdale, 232 Fed. Appx. 885, 890-91 (1 1 th Cir. 2007) (quoting Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283-84 (11th C ir. 2002)). However, Plaintiff's conclusory allegation that the police defendants "agreed a m o n g themselves and with other individuals to act in concert in order to deprive [Plaintiff] o f his clearly established Fourth and Fourteenth Amendment rights," (see TAC ¶ 110), is s im p ly insufficient to satisfy Plaintiff's burden. See Fullman v. Graddick, 739 F.2d 553, 557 ( 1 1 t h Cir. 1984) ("A complaint may justifiably be dismissed because of the conclusory, v ag u e and general nature of the allegations of conspiracy."). P la in tif f contends that, because the Report found that Plaintiff had adequately plead m u ltip le instances of unconstitutional behavior by the police defendants, this alleged b e h a v io r, considered collectively, provides circumstantial evidence sufficient to satisfy the h e ig h te n e d pleading standard for conspiracy claims. Plaintiff's argument fails in light of the S u p rem e Court's recent decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In Twombly, the Supreme Court focused on the allegations necessary to state a claim for a S h e rm a n Act conspiracy. See Twombly, 127 S. Ct. at 1964. The plaintiff in Twombly filed a n antitrust class action complaint broadly alleging a conspiracy to fix telephone service c h a rg e s based largely upon allegations of parallel business conduct coupled with "merely

19

le g a l conclusions" about an alleged conspiratorial agreement. Focusing on the requirement th a t a plaintiff properly plead an illegal agreement, the Court held that the pleading of n o th in g more than parallel conduct among defendants is insufficient to state a claim for c o n sp ira c y. Twombly, 127 S. Ct. at 1964. Thus, the Court stated that "parallel conduct" s ta n d in g alone, "fails to bespeak agreement." Id. Similarly, Plaintiff's allegations of parallel c o n s t i t u t io n a l violations standing alone, fail to bespeak agreement between the police d e f e n d a n ts .. P lain tiff further argues that, because he has not had the opportunity to engage in d is c o v e ry, it would be unfair to dismiss his conspiracy claim when all such evidence su p p o rtin g his claim is in the hands of the Defendants. Were the Court to accept this a rg u m e n t, it would be tantamount to an evisceration of the heightened pleading standard for § 1983 conspiracy claims, because every plaintiff could simply claim that the elusive e v i d e n c e of an agreement in support of a conspiracy was in the hands of the defendants, there b y avoiding his burden to plead particularized allegations. Accordingly, Plaintiff's c o n s p ira c y claim in Count V is dismissed without prejudice. 2. P la in tif f has failed to establish that Defendant Heller's co n d u ct violated Plaintiff's clearly established constitutional r ig h ts and therefore he is entitled to qualified immunity.

Plaintiff also objects to the Report's recommendation that Defendant Heller is entitled to qualified immunity for his actions relating to the press conference. "Qualified immunity o f f e r s a complete protection for government officials sued in their individual capacities if

20

th e ir conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th C ir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Magistrate Judge Turnoff found that Defendant Heller's actions in regards to the press c o n f ere n c e did not violate any "clearly established" right of the Plaintiff. Plaintiff concedes th a t he has been unable to find any pre-1979 (or post-1979) caselaw specifically addressing D e f e n d a n t Heller's conduct, but argues that the law was sufficiently developed to put him o n notice that his conduct was violative of Plaintiff's clearly established rights. The Court d is a g re e s. While the Supreme Court had held prior to the events in question that the risk of im p e rm is s ib le identification is greatly heightened if the victim is shown pictures of several p e rs o n s among which the photograph of a single such individual recurs or is in some way e m p h a s iz e d , see Simmons v. United States, 390 U.S. 377, 383 (1968), and condemned id e n tific a tio n procedures in which "[i]n effect, the police repeatedly said to the witness, `This is the man,'" Foster v. California, 394 U.S. 440, 442-43 (1969) (emphasis supplied), e x te n d in g these holdings to Defendant Heller's actions would stretch these holdings far b e yo n d the fair notice required by the law. See Bashir v. Rockdale County, 445 F.3d 1323, 1 3 3 1 (11th Cir. 2006) ("This is not to say that an official action is protected by qualified im m u n ity unless the very action in question has previously been held unlawful; but it is to s a y that in the light of pre-existing law the unlawfulness must be apparent.") (internal citatio n s and quotations omitted)). That is, based on the holdings of Simmons and Foster,

21

it would not be apparent to Defendant Heller that he was violating a clearly established c o n stitu tio n a l right by announcing in a press conference, two days prior to the physical lin e u p , that a suspect had been caught and providing his age, height, and approximate build (s e e TAC ¶ 57). Plaintiff also argues in his Objections that even if Defendant Heller was not in d e p e n d e n tly liable he could still be subject to supervisory liability. The Court rejects this a rg u m e n t as well. "Supervisor liability [under § 1983] occurs either when the supervisor p e rs o n a lly participates in the alleged constitutional violation or when there is a causal c o n n e ctio n between actions of the supervising official and the alleged constitutional d e p riv a tio n ." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990). A causal connection c a n be established in three ways: "when a history of widespread abuse puts the responsible s u p e rv is o r on notice of the need to correct the alleged deprivation, and he fails to do so," id.; " w h e n the supervisor's improper custom or policy . . . resulted in deliberate indifference to c o n stitu tio n a l rights," Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991); or "by facts w h ic h support an inference that the supervisor directed the subordinates to act unlawfully or k n e w that the subordinates would act unlawfully and failed to stop them from doing so," G o n z a le z v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003). Plaintiff has failed to allege

p erso n al participation in any of the alleged constitutional violations outlined in the Third A m e n d e d Complaint, nor has he alleged specific facts demonstrating a causal connection b e tw e e n Defendant Heller's statements at the press conference and the alleged constitutional

22

v io la tio n s by the other police defendants. As such, the § 1983 claims against Defendant H e lle r must be dismissed. 3. P la i n t if f' s claims against the County in Counts VII and VIII a r e properly dismissed without prejudice.

P la in tif f also objects to the Report's recommendation that his claims against the C o u n ty in Counts VII and VIII be dismissed without prejudice. Plaintiff argues the Report e rre d in recommending that Count VII - Plaintiff's § 1983 claim for unconstitutional m u n ic ip a l policy, custom or practice promulgated by the County's final policymakers - be d ism iss e d without prejudice, because the identity of final policymakers is a fact specific in q u iry. He further argues that the Third Amended Complaint adequately alleged a custom an d practice by the County of failing to train and supervise its police officers, and therefore h is claim in Count VIII - his § 1983 claim for failure to train and/or supervise police officer s h o u ld be allowed to proceed. The Court disagrees with both arguments. a. C o u n t VII

R e g a rd in g Count VII, to establish "liability under the final policymaker theory of m u n ic ip a l liability, `the challenged action must have been taken pursuant to a policy adopted b y the official or officials responsible under state law for making policy in that area of the c ity's business.'" Gomez v. Metro Dade County, Florida, 801 F. Supp. 674, 677 (S.D. Fla. 1 9 9 2 ) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)). Determining w h e th e r a County employee has final policymaking authority is a question of law for the ju d g e to decide. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (quoting 23

P r a p ro tn ik , 485 U.S. at 124 n.1).

The trial judge "must identify those officials or

g o v e rn m e n ta l bodies who speak with final policymaking authority for the local government ac tor concerning the action alleged to have caused the particular constitutional statutory v iolatio n at issue." Gomez, 801 F. Supp. at 677 (quoting Jett, 491 U.S. at 736). In Wilson v. Miami-Dade County, 2005 WL 3597737 (S.D. Fla. Sept. 19, 2005), a n o t h e r court in this district dismissed a plaintiff's § 1983 claim against the County on g ro u n d s that the plaintiff failed to allege facts that could support § 1983 liability. The p la in tif f in Wilson alleged that the County - through the Police Department Director, acting as the County's alleged final policymaker - was deliberately indifferent to the plaintiff's co n stitutio n al right to be protected from being murdered by a Miami-Dade police officer. Id . at *4. The Wilson court recognized that the courts in this district have "on multiple o c c a sio n s recognized that the final policymaking authority for Miami-Dade County rests s o le ly with the Board of County Commissioners or the County Manager." Id. at *8.6 The W ils o n court further found that, for purposes of § 1983 liability, the Director of the Police D e p a rtm e n t was not the final policymaker for Miami-Dade County, as "[p]olicymaking a u t h o r ity is not conferred by the mere delegation of authority to a subordinate to exercise

A number of courts in this district have found the same thing. See also Moore v. Miami-Dade County, 502 F. Supp. 2d 1224, 1230 n.4 (S.D. Fla. 2007) (Gold, J.) ("The final policy making authority for Miami-Dade County rests solely with the Board of County Commissioners or the County Manager.") (citations omitted); Buzzi v. Gomez, 62 F. Supp. 2d 1344, 1359-60 (S.D. Fla. 1999) (Gold, J.) (finding that Carlos Alvarez, as head of the Police Department, was not the final policymaker for the County); Lawrence v. Metro. Dade County, 872 F. Supp. 957, 964 (S.D. Fla. 1994) (Ungaro, J.) (noting that the County Manager oversees the police department). 24

6

d is c re tio n ." Id. (citations omitted). Where the Director's decisions "were limited by the o r d in a n c e s , resolutions, rules, and regulations passed by the Board and those officials d e le g a te d by the Board to promulgate administrative orders," and the Director's actions " w e re not unrestricted and were subject to review by the Board or other sources which in stitu ted policy having the force of law, his decisions were not `final,'" and the County c o u ld not be held liable under § 1983. Id. Thus, the Wilson court dismissed the § 1983 c la im against the County despite the plaintiff's allegation that the Police Department Director w a s the County's final policymaker. Id. at *9. P lain tiff alleges in his Third Amended Complaint that at all times relevant to this a c tio n , "the final policymakers for the MDPD included, without limitation, the Police Chief a n d the Mayor of the County." 7 (TAC ¶ 20.) As noted by other courts in this district, such a s the court in Wilson, and as provided for in the County's Charter as it existed in 1979, these a lle g a tio n s are incorrect and fail to correctly identify the final policy makers for the County. T h e County's Charter, as it existed in 1979, stated that: the "Board of County Commissioners sh a ll be the legislative and the governing body of the county and shall have the power to ca rry on a central metropolitan government" (Miami-Dade County Home Rule Charter § 1 .0 1 ( A )); the County Manager "shall be the chief executive officer and head of the ad m inistrat iv e branch of the county government" (id. § 3.01); and the Manager's

The Court notes that Plaintiff's allegations are further inadequate because they identify the final policymakers for the MDPD when they should be identifying the final policymakers for the County, the defendant that is the subject of his claim. 25

7

re sp o n sib ilities included "the administration of all units of the county government under his ju ris d ic tio n , and for carrying out policies adopted by the Commission" (id. § 3.04(A)). Thus, as presently plead, Plaintiff fails to state a claim for unconstitutional municipal p o lic y, custom or practice, because he attributes final policymaking authority to the Police C h ie f and the Mayor of the County. That is, Plaintiff has not carried his burden of making a "plausible claim" that the challenged action was taken pursuant to a policy adopted by the o ff icial or officials responsible under state law for making policy in that area of the County's b u sin e ss , because he fails to even identify the correct policy maker. See Ashcroft v. Iqbal, 1 2 9 S. Ct. 1937, 1949 (2009) ("Determining whether a complaint states a plausible claim is c o n te x t-s p e c if ic , requiring the reviewing court to draw on its experience and common sen se."). b. C o u n t VIII

R e g a rd in g Court VIII, a county is liable for a failure to train or supervise only when th e county's "official policy" causes a constitutional violation. Monell v. Dep't of Soc. S e rv s ., 436 U.S. 658, 694 (1978). A plaintiff has two methods by which to establish a c o u n ty's policy: identify either (1) an officially promulgated county policy or (2) an u n o f f ic ia l custom or practice of the county shown through the repeated acts of a final p o lic ym a k e r for the county. Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003) (citing Monell, 436 U.S. at 690-91, 694; Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1 9 9 9 ) ). "A custom or practice, while not adopted as an official formal policy, may be so

26

p erv asiv e as to be the functional equivalent of a formal policy." Id. at 1330 n.6. However, a single incident would not be so pervasive as to be a custom or practice. Id. P la in tif f argues that he has provided "abundant specific factual allegations about the m is c o n d u c t in this case, as well as direct allegations that this misconduct was part of a g e n e ra l custom and practice of unconstitutional behavior." However, the Court finds that he h as not shown that the constitutional violations alleged in his Third Amended Complaint are s o pervasive as to be the functional equivalent of a formal policy. Besides the specific a c tio n s of the police defendants alleged in the Third Amended Complaint, Plaintiff has a lle g e d no additional facts demonstrating that the events in question here were part of a c u sto m or practice. Magistrate Judge Turnoff put it well in the Report: "At best, and read in the light most favorable to Plaintiff, the Third Amended Complaint alleges that the County c h o se to ignore unconstitutional conduct by its police officers in this instance. This is in s u f f ic ie n t to state a § 1983 claim for failure to train." (Report at 29.) See also Depew v. S t. Mary's, 787 F.2d 1496, 1499 (11th Cir. 1986) ("random acts or isolated incidents are in s u f f ic ie n t to establish a custom or policy."). 4. C o u n t IX of the Third Amended Complaint fails to state a c la im .

P la in tif f objects to the Report's finding that the County could not be held liable for P la in tif f 's state law negligent training and supervision claim in Count IX. Magistrate Judge T u rn o f f found that, because a municipality's decisions regarding how to train its officers and w h a t subject matter to include in the training are clearly an exercise of governmental 27

d is c re tio n concerning fundamental questions of policy and planning, the County is entitled to sovereign immunity. (See Report at 31 (citing Lewis v. City of St. Petersburg, 260 F.3d 1 2 6 0 , 1266 (11th Cir. 2001)).) In his Objections, Plaintiff fails to even present an argument that the County's training a n d supervision of its police officers was an operational, as opposed to discretionary, f u n c tio n . Instead, Plaintiff recites the conclusory allegations from his Third Amended C o m p la in t that the County had a duty to ensure proper training and supervision of the police o f f ic e rs and breached that duty (TAC ¶¶ 131, 132), causing the police officers to commit the v a rio u s alleged constitutional violations detailed therin (TAC ¶ 133). To the extent that P lain tiff is arguing that the County can be liable for the manner in which it implemented its d is c re tio n a ry supervision and training programs, Plaintiff's bald allegations fail to satisfy b a sic notice pleading standards. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("[T]he tene t that a court must accept a complaint's allegations as true is inapplicable to threadbare rec itals of a cause of action's elements, supported by mere conclusory statements."). 5. It is irrelevant whether Defendant Heller is entitled to q u a lifie d immunity for Plaintiff's claim for malicious p ro sec u t io n in Count X, because Plaintiff has failed to state a claim against him.

In his fifth objection, Plaintiff argues that the Report erred in dismissing his state law c la im for malicious prosecution against Defendant Heller based on his qualified immunity. P lain tiff 's objection fails because, even if Defendant Heller was not entitled to q u a lif ie d immunity, Plaintiff has failed to state a claim against him for malicious prosecution. 28

U n d e r Florida law, a plaintiff must establish each of six elements to support a claim of m a lic io u s prosecution: (1) an original judicial proceeding against the present plaintiff was c o m m e n c ed or continued; (2) the present defendant was the legal cause of the original p ro c e ed in g ; (3) the termination of the original proceeding constituted a bona fide termination o f that proceeding in favor of the present plaintiff; (4) there was an absence of probable c a u se for the original proceeding; (5) there was malice on the part of the present defendant; a n d (6) the plaintiff suffered damages as a result of the original proceeding. See Kingsland v . City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004) (citing Durkin v. Davis, 814 So. 2d 1 2 4 6 , 1248 (Fla. 2d DCA 2002)). Besides his allegations regarding Defendant Heller's conduct during the press c o n f ere n c e, Plaintiff has failed to make any specific allegations that Defendant Heller ever sp o k e to the prosecutor or to a jury or was involved in any of the evidence presented at trial. F u r th e r , the Third Amended Complaint does not contain any specific facts or otherwise e x p la in how Defendant Heller had anything to do with the arrest or prosecution of Plaintiff. P la in tif f 's conclusory allegations contained in his counts for relief that Defendant Heller was in v o lv e d in the other police defendants' alleged unconstitutional actions are insufficient to s ta te a claim. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 6. T h e intentional infliction of emotional distress claim may p r o c e ed against Defendants Crocker and Calvert.

P la in tif f objects to the Report's recommendation that his claims for intentional infliction of emotional distress be dismissed against Defendants Crocker, Calvert, and Heller. 29

T o establish a cause of action for intentional infliction of emotional distress, four e le m e n ts must be proven: (1) deliberate or reckless infliction of mental suffering; (2) o u tra g e o u s conduct; (3) the conduct must have caused the emotional distress; and (4) the d istre ss must be severe. Dependable Life Ins. Co. v. Harris, 510 So. 2d 985, 986 (Fla. 5th D C A 1987). Conduct is considered outrageous when it is found "to go beyond all possible b o u n d s of decency, and to be regarded as atrocious, and utterly intolerable in a civilized c o m m u n ity. Generally, the case is one in which the recitation of the facts to an average m e m b e r of the community would arouse his resentment against the actor, and lead him to e x c la im , `Outrageous!'" Smith v. Telophase Nat'l Cremation Soc., 471 So. 2d 163, 166 (Fla. 2 d DCA 1985) (quoting Restatement (Second) of Torts § 46 at 73 (1965)). The Court agrees with Plaintiff that he has made a valid claim for intentional infliction o f emotional distress against Defendants Crocker and Calvert. Their alleged behavior during th e photo array shown to L.C. and their failure to inform the prosecutor or the defense of the c irc u m s ta n c es surrounding her supposed identification of Plaintiff's photograph, which, a c co rd in g to the Third Amended Complaint, led to Plaintiff false imprisonment for over tw en ty years, are sufficiently intolerable to make the average person exclaim, "Outrageous!" H o w e v e r, the Court concurs with the Report's recommendation that the intentional in f lic tio n of emotional distress claim be dismissed against Defendant Heller. The Court finds th a t his actions during the press conference, in which he announced Plaintiff's arrest and stated that he was the Bird Road Rapist, are not sufficiently outrageous to sustain Plaintiff's

30

claim in Count XI, particularly because Plaintiff has failed to allege that Defendant Heller's c o n d u c t had anything to do with Plaintiff's arrest and prosecution. B. D e fe n d a n ts ' Objections 1. Iq b a l does not bar Plaintiff's supervisory liability claims in C o u n t VI.

D ef en d an ts Calvert and Keller argue that Count VI, Plaintiff's claim for supervisory lia b ility, must be dismissed pursuant to the Supreme Court's recent decision in Ashcroft v. Iq b a l, 129 S. Ct. 1937, 1949 (2009). In Iqbal, the Supreme Court rejected the argument that a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the su p e rv iso r's violating the Constitution, holding that: Absent vicarious liability, each Government official, his or her title n o t w i th s t an d in g , is only liable for his or her own misconduct. In the context o f determining whether there is a violation of clearly established right to o v e rc o m e qualified immunity, purpose rather than knowledge is required to im p o s e Bivens liability on the subordinate for unconstitutional discrimination; th e same holds true for an official charged with violations arising from his or h e r superintendent responsibilities. 1 2 9 S. Ct. at 1949. Defendants Calvert and Keller argue that Iqbal eliminates "supervisory liability" c la im s , thereby foreclosing Plaintiff's claim in Count VI. Defendants Calvert and Keller f u rth e r contend that they are not being sued for any action taken as a supervisor (such as an o rd e r or instruction to the line officers), but, instead, are being sued for their own personal c o n d u c t as police officers. As they are already been sued in Counts I-IV for this alleged c o n d u c t, their argument continues, Plaintiff should not be permitted to maintain a redundant 31

c o u n t for supervisory liability, when he is not suing Defendants Calvert and Keller for any su p e rv iso ry actions, and when such a count is no longer recognized by the Supreme Court. T h e Court rejects Defendants Calvert and Keller's reading of Iqbal as overbroad. The a b o v e -q u o t e d passage from Iqbal stands for the proposition that a supervisor cannot be v ic a rio u s ly liable solely for the acts of a subordinate. However, there is no indication that th e Supreme Court intended to wipe out the well-developed body of law surrounding s u p e rv is o ry liability, and Eleventh Circuit decisions post-Iqbal have given no indication that § 1983 supervisory liability claims are now barred. See Gross v. White, 2009 U.S. App. L e x is 15939 (11th Cir. July 17, 2009) (citing Iqbal and, in another part of the opinion, s u m m a riz in g Eleventh Circuit case law on supervisory liability claims). Additionally, regarding Defendants' argument that Plaintiff's supervisory liability c la im against Defendants Calvert and Keller is redundant because it realleges conduct that th e y are already being sued for in Counts I through IV, this argument fails because Plaintiff is "the master of the complaint," Holmes Group, Inc. v. Vornado Air Circulation Sys., 535 U .S . 826, 831 (2002), and therefore he has the right to assert multiple and alternative theories o f liability and have each considered on its own merits. 2. D e fe n d a n ts Crocker, Patmore, Shipes, Keller, Calvert and D a n ie ls are not entitled to qualified immunity.

D e f en d a n ts Crocker, Patmore, Shipes, Keller, Calvert and Daniels object to the R e p o rt's recommendation that they are not entitled to qualified immunity. Defendants do not p o in t to any of the Report's findings as to specific counts, but instead argue generally that 32

th e "fellow officer" rule, the identification by other witnesses, and the existence of arguable p ro b a b le cause mandate their wholesale dismissal from this action. These arguments fail. a. T h e fellow officer rule

T h e "fellow officer rule" allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers. See Voorhees v. State, 699 So. 2d 602, 6 0 9 (Fla. 1997). In their Objections, Defendants appear to argue that after Defendant M e n d e z told the other police defendants that he had spoken with Plaintiff's neighbors and re c e iv e d suspicious information from them, they were thereafter permitted to rely on this in f o rm a tio n in arresting Plaintiff. While Defendants fail to identify any specific claim that they wish to be immunized f ro m pursuant to the fellow officer rule, the Court declines to afford them qualified immunity a g a in s t Plaintiff's claims stemming from the unduly suggestive lineups (Count I), the fa b rica tio n of evidence (Count III), and the Brady violations (Count IV) based on the mere fa ct that they may have received some information from another officer. D e f e n d a n ts also appear to argue that, even if the fellow officer rule does not shield them from liability for Counts I, III, and IV, they are nonetheless shielded from Plaintiff's c la im for malicious prosecution and false imprisonment (Count IV) based on Defendant M e n d e z 's report regarding Plaintiff's neighbors' statements. Even if this argument has merit, th e Court concurs with the finding of the Report that applying the fellow officer rule is p re m a tu re at this stage. There are unresolved factual questions regarding what each of the

33

D e f en d a n ts knew, what information had been supplied to them by their fellow officers, and w h e th e r they knew such information was false, when they commenced or continued the legal p ro c e ed in g s against Plaintiff. Defendants contend that this recommendation is in error b e c au s e the fellow officer rule is part of the qualified immunity analysis and qualified im m u n ity should be resolved as early in the litigation as possible. (See Defendants' O b je c tio n s , D.E. 231 at 6 (citing Scott v. Harris, 127 S. Ct. 1769, 1774 n.2 (2008).) The C o u rt concurs that qualified immunity should be resolved at the earliest possible stage in the litig a tio n , but finds that, as recommended by the Report, the current stage is too soon. b. Id e n tific a tio n by other witnesses and arguable p r o b a b le cause

D e f e n d a n ts also argue in their Objections that, in determining whether probable cause e x is te d to arrest Plaintiff, they were entitled to rely on C.J.'s initial identification of Plaintiff a s her assailant, the other victims' later identification of Plaintiff as their assailant at a lineup, an d Defendant Mendez's report. Without addressing the factual question of whether C.J.'s id e n tif ic a tio n of Plaintiff - which the MDPD had earlier found unreliable - the other victims' id e n tif ic a tio n s - which were allegedly based on unconstitutionally suggestive lineup p ro c e d u re s - or Defendant Mendez's report - which, as noted above, is factually undeveloped b e c a u se the Court does not know when the report was disseminated and who knew about it w e re enough for probable cause, the Third Amended Complaint alleges that the prosecutor a u th o riz e d the arrest of Plaintiff after receiving the evidence fabricated by Defendants S h ip e s , Daniels, Mendez and Patmore and the faulty identification of Plaintiff by L.C. (TAC 34

¶ 49). Therefore, there is a factual question, based on the allegations of the Third Amended C o m p lain t, whether C.J.'s and the other victims' testimony and Defendant Mendez's report w e re used by the police defendants to establish probable cause, as the police defendants a rg u e they were. Further, while, as noted above, Defendants do not specify for which claims th e y want to be immunized, the mere fact that they had some probable cause for arresting P la in ti f f could not immunize them for their alleged violations of Plaintiff's constitutional rig h ts in Counts I, III, and IV. 3. D e fe n d a n ts misapply Davenpeck.

D e f e n d a n ts argue in their Objections that the Report is erroneous as its fails to re c o m m e n d that Defendants are entitled to qualified immunity under the rule in Davenpeck v . Alford, 543 U.S. 146, 153 (2004). Defendants contend that, under the rule announced in D a v e n p e c k , qualified immunity applies as long as there was some objectively lawful basis f o r police action. Therefore, Defendants argue, because there was some valid evidence s u g g e stin g probable cause for Plaintiff's arrest, Defendants are entitled to qualified i m m u n i t y. T h i s is a misreading of Davenpeck, which dealt with the question of whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable c a u s e to arrest is not "closely related" to the offense stated by the arresting officer at the time o f arrest. Id. at 148. The Supreme Court's holding that probable cause in the context of a F o u rth Amendment challenge to an allegedly false arrest "depends upon the reasonable

35

c o n c lu s io n to be drawn from the facts known to the arresting officer at the time of the arrest," a n d that the probable cause inquiry is objective rather than subjective, id. at 152-53, is in a p p o site to the facts and claims alleged in the Third Amended Complaint - Plaintiff has not e v e n made a claim for false arrest - and will not be addressed any further. 4. P la in tiff's claims in Count I may proceed.

D efen d an ts make two objections to the Report's recommendation that Plaintiff's claim f o r suggestive identification methods be allowed to proceed. First, Defendants contend that a claim for the use of an allegedly suggestive identification method is barred by the Supreme C o u rt's decision in Manson v. Brathwaite, 432 U.S. 98, 113 n.13 (1977). Second,

D e f e n d a n ts argue that the recommendation that the lineups themselves violated clearly e sta b lis h e d law in the late 1970s is incorrect because the cases from that era do not s p e c if ic a lly tell a police officer that it would be illegal to prepare a photo array using mug s h o ts of several people and a drivers license photo of Plaintiff or to prepare a physical lineup in which Plaintiff was seven years older than the next-oldest person in the lineup. The Court rejects both of Defendants' objections. As to the first objection, the S u p r e m e Court's holding in Manson is not as narrow as Defendants claim. While the S u p rem e Court held in that case that "a suggestive preindictment identification procedure d o e s not in itself intrude upon a constitutionally protected interest," 432 U.S. at 113 n.13 (e m p h a s is supplied), Plaintiff does not allege a constitutional violation arising solely from th e allegedly impermissibly suggestive identification procedures; instead, he alleges that "as

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a result of these unduly suggestive procedures, ten victims misidentified [Plaintiff] both b e f o re and at trial, in violation of his Fourteenth Amendment right to a fair trial and not to b e deprived of liberty without due process of law." (See TAC ¶ 80.) As recognized by M a g is tra te Judge Turnoff, this is a valid claim in the Eleventh Circuit. See, e.g., Cikora v. D u g g e r, 840 F.2d 893, 895 (11th Cir. 1988). Defendants completely fail to address this p o rtio n of the Report. D e f en d a n t's second objection - regarding whether Defendants' alleged actions during th e lineups violated Plaintiff's clearly established constitutional rights - is also without merit. R eg ard in g the photo lineup, Defendants are incorrect when they claim that they are e n title d to qualified immunity because the Supreme Court had not specifically ruled on the e x a c t factual scenario presented in this case at the time the photo lineup occurred